CRS Annotated Constitution

In 1855, the Court first attempted to assess its
standards for judging what was due process. At issue was
the constitutionality of summary proceedings under a
distress warrant to levy on the lands of a government
debtor. The Court first ascertained that Congress was
not free to make any process “due process.” “To what
principles, then are we to resort to ascertain whether
this process, enacted by congress, is due process? To
this the answer must be twofold. We must examine the
constitution itself, to see whether this process be in
conflict with any of its provisions. If not found to be
so, we must look to those settled usages and modes of
proceedings existing in the common and statute law of
England, before the emigration of our ancestors and
which are shown not to have been unsuited to their civil
and political condition by having been acted on by them
after the settlement of this country.” A survey of
history disclosed that the law in England seemed always
to have contained a summary method for recovering debts
owned the Crown not unlike the law in question. Thus,
“tested by the common and statute law of England prior
to the emigration of our ancestors, and by the laws of
many of the States at the time of the adoption of this
amendment, the proceedings authorized by the act of 1820
cannot be denied to be due process of law. . .
.”22

This formal approach to the meaning of due process
could obviously have limited both Congress and the state
legislatures in the development of procedures unknown to
English law. But when California’s abandonment of
indictment by grand jury was challenged, the Court
refused to be limited by the fact that such proceeding
was the English practice and that Coke had indicated
that it was a proceeding required as “the law of the
land.” The meaning of the Court in Murray’s Lessee was
“that a process of law, which is not otherwise
forbidden, must be taken to be due process of law, if it
can show the sanction of settled usage both in England
and in this country; but it by no means follows that
nothing else can be due process of law.” To hold that
only historical, traditional procedures can constitute
due process, the Court said, “would be to deny every
quality of the law but its age, and to render it
incapable[p.1348]of progress or
improvement.”23 Therefore, in observing the
due process guarantee, it was concluded, the Court must
look “not [to] particular forms of procedures, but [to]
the very substance of individual rights to life,
liberty, and property.” The due process clause
prescribed “the limits of those fundamental principles
of liberty and justice which lie at the base of all our
civil and political institutions. . . . It follows that
any legal proceeding enforced by public authority,
whether sanctioned by age and custom, or newly devised
in the discretion of the legislative power, in
furtherance of the general public good, which regards
and preserves these principles of liberty and justice,
must be held to be due process of law.”24

Generally.—The phrase “due process of law” does not necessarily
imply a proceeding in a court or a plenary suit and
trial by jury in every case where personal or property
rights are involved.25 “In all cases, that kind of
procedure is due process of law which is suitable and
proper to the nature of the case, and sanctioned by the
established customs and usages of the courts.”26
What is unfair in one situation may be fair in
another.27 “The precise nature of the
interest that has been adversely affected, the manner in
which this was done, the reasons for doing it, the
available alternatives to the procedure that was
followed, the protection implicit in the office of the
functionary whose conduct is challenged, the balance of
hurt complained of and good accomplished—these are some
of the considerations that must enter into the judicial
judgment.”28

Administrative Proceedings: A Fair Hearing.—With respect to action taken by administrative
agencies, the Court has held that the demands of due
process do not require a hearing at the initial stage,
or at any particular point in the proceeding, so long as
a hearing is held before the final order becomes
effective.29 In Bowles v.
Willingham,30 the Court sustained orders
fixing maximum rents issued without a hearing at any
stage, saying “where Congress has provided for judicial
review after the regulations or[p.1349]orders have been made effective it has done all that
due process under the war emergency requires.” But
where, after consideration of charges brought against an
employer by a complaining union, the National Labor
Relations Board undertook to void an agreement between
an employer and another independent union, the latter
was entitled to notice and an opportunity to participate
in the proceedings.31 Although a taxpayer must be
afforded a fair opportunity for hearing in connection
with the collection of taxes,32 collection
by distraint of personal property is lawful if the
taxpayer is allowed a hearing thereafter.33

When the Constitution requires a hearing it requires
a fair one, held before a tribunal which meets currently
prevailing standards of impartiality.34 A party
must be given an opportunity not only to present
evidence, but also to know the claims of the opposing
party and to meet them. Those who are brought into
contest with the Government in a quasi–judicial
proceeding aimed at control of their activities are
entitled to be fairly advised of what the Government
proposes and to be heard upon the proposal before the
final command is issued.35 But a variance
between the charges and findings will not invalidate
administrative proceedings where the record shows that
at no time during the hearing was there any[p.1350]misunderstanding as to the basis of the
complaint.36 The mere admission of
evidence which would be inadmissible in judicial
proceedings does not vitiate the order of an
administrative agency.37 A provision that such
a body shall not be controlled by rules of evidence does
not, however, justify orders without a foundation in
evidence having rational probative force. Hearsay may be
received in an administrative hearing and may constitute
by itself substantial evidence in support of an agency
determination, provided that there are present factors
which assure the underlying reliability and probative
value of the evidence and, at least in the case at hand,
where the claimant before the agency had the opportunity
to subpoena the witnesses and cross–examine them with
regard to the evidence.38 While the Court has
recognized that in some circumstances a “fair hearing”
implies a right to oral argument,39 it has
refused to lay down a general rule that would cover all
cases.40

In the light of the historically unquestioned power
of a commanding officer summarily to exclude civilians
from the area of his command, and applicable Navy
regulations which confirm this authority, together with
a stipulation in the contract between a restaurant
concessionaire and the Naval Gun Factory forbidding
employment on the premises of any person not meeting
security requirements, due process was not denied by the
summary exclusion on security grounds of the
concessionaire’s cook, without hearing or advice as to
the basis for the exclusion. The Fifth Amendment does
not require a trial–type hearing in every conceivable
case of governmental impairment of private
interest.41 Since the Civil
Rights[p.1351]Commission acts solely as
an investigative and fact–finding agency and makes no
adjudications, the Court, in Hannah v. Larche,42
upheld supplementary rules of procedure adopted by the
Commission, independently of statutory authorization,
under which state electoral officials and others accused
of discrimination and summoned to appear at its
hearings, are not apprised of the identity[p.1352]of their accusers, and witnesses,
including the former, are not accorded a right to
confront and cross–examine witnesses or accusers
testifying at such hearings. Such procedural rights, the
Court maintained, have not been granted by grand juries,
congressional committees, or administrative agencies
conducting purely fact–finding investigations in no way
determining private rights.

Aliens:
Entry and Deportation.—To aliens who have never been naturalized or
acquired any domicile or residence in the United States,
the decision of an executive or administrative officer,
acting within powers expressly conferred by Congress,
with regard to whether or not they shall be permitted to
enter the country, is due process of law.43
Since the status of a resident alien returning from
abroad is equivalent to that of an entering alien, his
exclusion by the Attorney General without a hearing, on
the basis of secret, undisclosed information, also is
deemed consistent with due process.44 The
complete authority of Congress in the matter of
admission of aliens justifies delegation of power to
executive officers to enforce the exclusion of aliens
afflicted with contagious diseases by imposing upon the
owner of the vessel bringing any such alien into the
country a money penalty, collectible before and as a
condition of the grant of clearance.45 If the
person seeking admission claims American citizenship,
the decision of the Secretary of Labor may be made
final, but it must be made after a fair hearing, however
summary, and must find adequate support in the evidence.
A decision based upon a record from which relevant and
probative evidence has been omitted is not a fair
hearing.46 Where the statute made the
decision of an immigration inspector final unless an
appeal was[p.1353]taken to the Secretary
of the Treasury, a person who failed to take such an
appeal did not, by an allegation of citizenship, acquire
a right to a judicial hearing on habeas corpus.47

Deportation proceedings are not criminal
prosecutions within the meaning of the Bill of
Rights.48 The authority to deport is
drawn from the power of Congress to regulate the
entrance of aliens and impose conditions upon their
continued liberty to reside within the United States.
Findings of fact reached by executive officers after a
fair, though summary deportation hearing may be made
conclusive.49 In Wong Yang Sung v.
McGrath,50 however, the Court intimated
that a hearing before a tribunal which did not meet the
standards of impartiality embodied in the Administrative
Procedure Act51 might not satisfy the
requirements of due process of law. To avoid such
constitutional doubts, the Court construed the law to
disqualify immigration inspectors as presiding officers
in deportation proceedings. Except in time of war,
deportation without a fair hearing or on charges
unsupported by any evidence is a de[p.1354]nial of due process which may be corrected on habeas
corpus.52 In contrast with the
decision in United States v. Ju Toy53 that a
person seeking entrance to the United States was not
entitled to a judicial hearing on his claim of
citizenship, a person arrested and held for deportation
is entitled to a day in court if he denies that he is an
alien.54 A closely divided Court has
ruled that in time of war the deportation of an enemy
alien may be ordered summarily by executive action; due
process of law does not require the courts to determine
the sufficiency of any hearing which is gratuitously
afforded to the alien.55

Judicial
Review of Administrative Proceedings.—To the extent that constitutional rights are
involved, due process of law imports a judicial review
of the action of administrative or executive officers.
This proposition is undisputed so far as questions of
law are concerned, but the extent to which the courts
should and will go in reviewing determinations of fact
has been a highly controversial issue. In St. Joseph
Stock Yards Co. v. United States,56 the Court
held that upon review of an order of the Secretary of
Agriculture establishing maximum rates for services
rendered by a stockyard company, due process required
that the court exercise its independent judgment upon
the facts to determine whether the rates were
confiscatory.57 Subsequent cases sustaining
rate orders of the Federal Power Commission have not
dealt explicitly with this point.58 The Court
has said simply that a person assailing such an order
“carries the heavy burden of making a convincing showing
that it is invalid because it is unjust and unreasonable
in its consequences.”59

There has been a division of opinion in the Supreme
Court with regard to what extent, if at all, proceedings
before military tribunals should be reviewed by the
courts for the purpose of determining compliance with
the due process clause. In In re Yamashita,60
the majority denied a petition for certiorari and
petitions for writs of habeas corpus to review the
conviction of a Japanese war criminal by a military
commission sitting in the Philippine Islands. It held
that since the military commission, in admitting
evidence to which objection was made, had not violated
any act of Congress, a treaty, or a military command
defining its authority, its ruling on evidence and on
the mode of conducting the proceedings were not
reviewable by the courts. Again, in Johnson v.
Eisentrager,61 the Court overruled a lower
court decision, which in reliance upon the dissenting
opinion in the Yamashita case, had held that the due
process clause required that the legality of the
conviction of enemy alien belligerents by military
tribunals should be tested by the writ of habeas
corpus.

Without dissent, the Court, in Hiatt v.
Brown,62 reversed the judgment of a
lower court which had discharged a prisoner serving a
sentence imposed by a court–martial because of errors
whereby the prisoner had been deprived of due process of
law. The Court held that the court below had erred in
extending its review, for the purpose of determining
compliance with the due process clause, to such matters
as the propositions of law set forth in the staff judge
advocate’s report, the sufficiency of the evidence to
sustain conviction, the adequacy of the pre–trial
investigation, and the competence of the law member and
defense counsel. In summary, Justice Clark wrote: “In
this case the court–martial had jurisdiction of the
person accused and the offense charged, and acted within
its lawful powers. The correction of any errors it may
have committed is for the military authorities which are
alone authorized to review its decision.”63
Similarly, in Burns v. Wilson,64 the Court
denied a petition for the writ to review a conviction by
a military tribunal on the Island of Guam wherein the
petitioners asserted that their imprisonment resulted
from proceedings violative of their basic constitutional
rights. Four Justices, with whom Justice Minton
concurred, maintained that judicial review is limited to
determining whether the military tribunal, or
court–martial, had given fair consideration to each of
petitioners’ allegations, and does not embrace[p.1356]an opportunity “to prove de novo” what
petitioners had “failed to prove in the military
courts.” According to Justice Minton, however, if the
military court had jurisdiction, its action is not
reviewable.

Footnotes

22
Murray’s Lessee v. Hoboken Land and Improvement
Co., 59 U.S. (18 How.) 272, 276–77, 280 (1856). A
similar approach was followed in Fourteenth Amendment
due process interpretation in Davidson v. City of New
Orleans,
96 U.S. 97 (1878), and Munn v.
Illinois,
94 U.S. 113 (1877).

35
Margan v. United States,
304 U.S. 1, 18–19 (1938). The Court
has experienced some difficulty with application of
this principle to administrative hearings and
subsequent review in selective service cases. Compare
Gonzales v. United States,
348 U.S. 407 (1955)
(conscientious objector contesting his classification
before appeals board must be furnished copy of
recommendation submitted by Department of Justice;
only by being appraised of the arguments and
conclusions upon which recommendations were based
would he be enabled to present his case effectively),
with United States v. Nugent,
346 U.S. 1 (1953) (in auxiliary
hearing which culminated in Justice Department’s
report and recommendation, it is sufficient that
registrant be provided with resume of adverse evidence
in FBI report because the “imperative needs of
mobilization and national vigilance” mandate a minimum
of “litigious interruption”), and Gonzales v. United
States,
364 U.S. 59 (1960) (five–to–four
decision finding no due process violation when
petitioner (1) at departmental proceedings was not
permitted to rebut statements attributed to him by his
local board, because the statements were in his file
and he had opportunity to rebut both before hearing
officer and appeal board, nor (2) at trial was denied
access to hearing officer’s notes and report, because
he failed to show any need and did have Department
recommendations).

40
FCC v. WJR,
337 U.S. 265, 274–77
(1949). See also Inland Empire Council v.
Millis,
325 U.S. 697, 710 (1945).
See Administrative Procedure Act,
60 Stat. 237
(1946), 5 U.S.C §§ 1001–1011. Cf. Link v.
Wabash R.R.,
370 U.S. 626, 637, 646
(1962), wherein the majority rejected Justice
Black’s dissenting thesis that the dismissal with
prejudice of a damage suit without notice to the
client and grounded upon the dilatory tactics of his
attorney, and the latter’s failure to appear at a
pre–trial conference, amounted to a taking of property
without due process of law.

41
Cafeteria & Restaurant Workers Union v.
McElroy,
367 U.S. 886, 900–01
(1961). Four dissenters, Justices Brennan,
Black, Douglas, and Chief Justice Warren, emphasized
the inconsistency between the Court’s acknowledgment
that the cook had a right not to have her entry badge
taken away for arbitrary reasons, and its rejection of
her right to be told in detail the reasons for such
action. The case has subsequently been cited as
involving an “extraordinary situation.” Boddie v.
Connecticut,
401 U.S. 371, 379 (1971);
Goldberg v. Kelly,
397 U.S. 254, 264 n.10
(1970).

Manifesting a disposition to adjudicate on
non–constitutional grounds dismissals of employees
under the Federal Loyalty Program, the Court, in
Peters v. Hobby,
349 U.S. 331 (1955), invalidated,
as in excess of its delegated authority, a finding of
reasonable doubt as to the loyalty of the petitioner
by a Loyalty Review Board which, on its own
initiative, reopened his case after he had twice been
cleared by his Agency Loyalty Board, and arrived at
its conclusion on the basis of adverse information not
offered under oath and supplied by informants, not all
of whom were known to the Review Board and none of
whom was disclosed to petitioner for cross–examination
by him. The Board was found not to possess any power
to review on its own initiative. Concurring, Justices
Douglas and Black condemned as irreconcilable with due
process and fair play the use of faceless informers
whom the petitioner is unable to confront and
cross–examine.

In Cole v. Young,
351 U.S. 536 (1956), also decided
on the basis of statutory interpretation, there is an
intimation that grave due process issues would be
raised by the application to federal employees, not
occupying sensitive positions, of a measure which
authorized, in the interest of national security,
summary suspensions and unreviewable dismissals of
allegedly disloyal employees by agency heads. In
Service v. Dulles,
354 U.S. 363 (1957), and
Vitarelli v. Seaton,
359 U.S. 535 (1959), the Court
nullified dismissals for security reasons by invoking
an established rule of administrative law to the
effect that an administrator must comply with
procedures outlined in applicable agency regulations,
notwithstanding that such regulations conform to more
rigorous substantive and procedural standards than are
required by Congress or that the agency action is
discretionary in nature. In both of the last cited
decisions, dismissals of employees as security risks
were set aside by reason of the failure of the
employing agency to conform the dismissal to its
established security regulations. See Accardi v.
Shaughnessy,
347 U.S. 260 (1954).

Again avoiding constitutional issues, the Court,
in Greene v. McElroy,
360 U.S. 474 (1959), invalidated
the security clearance procedure required of defense
contractors by the Defense Department as being
unauthorized either by law or presidential order.
However, the Court suggested that it would condemn, on
grounds of denial of due process, any enactment or
Executive Order which sanctioned a comparable
department security clearance program, under which a
defense contractor’s employee could have his security
clearance revoked without a hearing at which he had
the right to confront and cross–examine witnesses.
Justices Frankfurter, Harlan, and Whittaker concurred
without passing on the validity of such procedure, if
authorized. Justice Clark dissented. See also the
dissenting opinions of Justices Douglas and Black in
Beard v. Stahr,
370 U.S. 41, 43 (1962), and
in Williams v. Zuckert,
371 U.S. 531, 533
(1963).

42363 U.S. 420, 493, 499
(1960). Justices Douglas and Black dissented
on the ground that when the Commission summons a
person accused of violating a federal election law
with a view to ascertaining whether the accusation may
be sustained, it acts in lieu of a grand jury or a
committing magistrate, and therefore should be
obligated to afford witnesses the procedural
protection herein denied. Congress subsequently
amended the law to require that any person who is
defamed, degraded, or incriminated by evidence or
testimony presented to the Commission be afforded the
opportunity to appear and be heard in executive
session, with a reasonable number of additional
witnesses requested by him, before the Commission can
make public such evidence or testimony. Further, any
such person, before the evidence or testimony is
released, must be afforded an opportunity to appear
publicly to state his side and to file verified
statements with the Commission which it must release
with any report or other document containing defaming,
degrading, or incriminating evidence or testimony.
Pub. L. No. 91–521, Sec. 4,
84 Stat. 1357
(1970),
42 U.S.C.
Sec. 1975a
(e). Cf. Jenkins v. McKeithen,
395 U.S. 411 (1969).

44
Shaughnessy v. United States ex rel. Mezel,
345 U.S. 206 (1953). The long
continued detention on Ellis Island of a
non–deportable alien does not change his status or
give rise to any right of judicial review. In dissent,
Justices Black and Douglas maintained that the
protracted confinement on Ellis Island without a
hearing could not be reconciled with due process. Also
dissenting, Justices Frankfurter and Jackson contended
that when indefinite commitment on Ellis Island
becomes the means of enforcing exclusion, due process
requires that a hearing precede such deprivation of
liberty.

Cf. Kwong Hai Chew v. Colding,
344 U.S. 590, 596 (1953),
wherein the Court, after acknowledging that resident
aliens held for deportation are entitled to procedural
due process, ruled that as a matter of law the
Attorney General must accord notice of the charges and
a hearing to a resident alien seaman who is sought to
be “expelled” upon his return from a voyage overseas.
The Knauff case was distinguished on the ground that
the seaman’s status was not that of an entrant, but
rather that of a resident alien. And see Leng May Ma
v. Barber,
357 U.S. 185 (1958).

48
Harisiades v. Shaughnessy,
342 U.S. 580 (1952). But this
fact does not mean that a person may be deported on
the basis of judgment reached on the civil standard of
proof, that is, by a preponderance of the evidence.
Rather, the Court has held, a deportation order may
only be entered if it is found by clear, unequivocal,
and convincing evidence that the facts alleged as
grounds for deportation are true. Woodby v. INS,
385 U.S. 276 (1966). Woodby, and
similar rulings, were the result of statutory
interpretation and were not constitutionally
compelled. Vance v. Terrazas,
444 U.S. 252, 266–67
(1980).

49
Zakonaite v. Wolf,
226 U.S. 272 (1912). See Jay v.
Boyd,
351 U.S. 345 (1956), wherein the
Court emphasized that suspension of deportation is not
a matter of right, but of grace, like probation or
parole, and accordingly an alien is not entitled to a
hearing which contemplates full disclosure of the
considerations, specifically, information of a
confidential nature pertaining to national security,
which induced administrative officers to deny
suspension. In four dissenting opinions, Chief Justice
Warren, together with Justices Black, Frankfurter, and
Douglas, found irreconcilable with a fair hearing and
due process the delegation by the Attorney General of
his discretion to an inferior officer and the vesting
of the latter with power to deny a suspension on the
basis of undisclosed evidence which may amount to no
more than uncorroborated hearsay.

50339 U.S. 33 (1950). See also Kimm
v. Rosenberg,
363 U.S. 405, 408, 410, 415 (1960), wherein the
Court ruled that when, at a hearing on his petition
for suspension of a deportation order, an alien
invoked the Fifth Amendment in response to questions
as to Communist Party membership, and contended that
the burden of proving such affiliation was on the
Government, it was incumbent on the alien to supply
the information inasmuch as the Government had no
statutory discretion to suspend deportation of a
Communist. Justices Douglas, Black, Brennan, and Chief
Justice Warren dissented on the ground that exercise
of the privilege is a neutral act, supporting neither
innocence nor guilt and may not be utilized as
evidence of dubious character. Justice Brennan also
thought the Government was requiring the alien to
prove non–membership when no one had intimated that he
was a Communist.

Although in Heikkila v. Barber,
345 U.S. 229 (1953), the Court
held that a deportation order under the Immigration
Act of 1917 might be challenged only by habeas corpus,
in Shaughnessy v. Pedreiro,
349 U.S. 48 (1955), it
established that, under the Immigration Act of
1952,
8 U.S.C.
Sec. 1101
, the validity of a deportation order also may
be contested in an action for declaratory judgment and
injunctive relief. Also, a collateral challenge must
be permitted to the use of a deportation proceeding as
an element of a criminal offense where effective
judicial review of the deportation order has been
denied. United States v. Mendoza–Lopez,
481 U.S. 828 (1987).